On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.

Yesterday the Department of Justice rolled out a new online technical assistance webpage that cleans up a lot of the organizational problems I’ve blogged about in the past.* You can find it here. It isn’t perfect. You might wonder why, for example, we still have both a “Primer for Small Business” and a “Guide for Small Businesses” as well as two different documents concerning service animals. DOJ’s habit of publishing one topic guidances can be helpful, but the failure to consistently integrate them into more comprehensive documents makes it hard for businesses to have a single consistent place to go when they need information. We really need a well organized on-line encyclopedia of ADA guidance in plain language so that a business looking for a particular answer doesn’t have to guess which of the many available on-line documents will have it. It is also notable that DOJ still has materials written before the publication of the 2010 Standards as well as materials concerning communication that are more than 15 years old and therefore very likely to be out of date in light of technological developments.

Still, the re-organization is a welcome change and should be of some benefit to businesses interesting in maintaining ADA compliance without necessarily calling a lawyer.

I have often discussed the benefits of mootness as a defense in Title III ADA cases. Simply fix the problem and the plaintiff’s right to sue evaporates. Unfortunately, not all problems can be easily or cheaply fixed, leaving the defendant in the unpleasant position of having to spend an absurd amount of money or make an irritating settlement that pays the plaintiff’s lawyer to give up the claim. When the cost to fix a problem is high, the “readily achievable” standard in the ADA comes into play and can help the defendant.

Lawsuits claiming the ADA requires that websites be accessible to those with disabilities are being filed in record numbers against businesses small and large. This seminar will explain what “accessibility” means for websites, the legal theories behind such suits, the still confused state of the law, and effective strategies for dealing with a claim against your client.

If you cannot watch the entire webcast at its scheduled time, register now and view the recorded eCourse when it is available in “Your Briefcase” after the webcast. Earn CLE credit (in TX and CA) on your time!

This won’t be free, but those of you who are attorneys will receive CLE credit for the course.

Summer is almost over, but before I put away my flip flops and seer sucker suit here’s a last look at what has been a very busy summer in the field of ADA and FHA litigation.

Landlord liability for tenant discrimination

Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants.

The Court first recognized what it called a “hostile housing environment” claim analogous to a hostile workplace environment claim in an employment case; that is, a manager may be liable for the conduct of others that creates a hostile environment if the manager has sufficient control over that conduct. It then analyzes in some detail whether the landlord had the necessary kind of control, eventually finding that there was at least a sufficient allegation of control based on the landlord’s ability to affect tenant conduct through the enforcement of its own policies, including for example its right to evict tenants whose conduct unreasonably interferes in the use and enjoyment of the premises. The case was decided on a motion to dismiss, so the Court was only looking at allegations, but any landlord should understand that failing to control discriminatory conduct by tenants when it is possible to do so may lead to direct liability under the Fair Housing Act.‡

More on websites, the ADA, and standing.

Carello v. Aurora Policemen Credit Union, 2018 WL 3740545 (N.D. Ill. Aug. 7, 2018) is another credit union website case in which the court agreed that someone who could never be a member of a credit union could not suffer an injury from the inaccessibility of its website. Counting the losses and victories in these credit union cases is an interesting exercise, and one that makes sense for any credit union defendant. The larger issue is whether the “actual injury” requirement in these cases will expand to other kinds of cases in which it is clear the plaintiff never intended to use the goods or services of a website but claims some psychic injury from being confronted with a barrier to access. That issue was discussed, but avoided in another recent credit union case, Tawam v. APCI Fed. Credit Union, 2018 WL 3723367 (E.D. Pa. Aug. 6, 2018). In Tawam the court found the plaintiff has sufficiently alleged that he could in fact utilize the services of the defendant credit union even though he could not become a member because it was part of a group of credit unions that included credit unions in which he could become a member. This allowed it to sidestep the dignitary injury issue entirely although its brief listing of many of the relevant cases will be useful to defense counsel looking for authorities. We’ve made our position on this issue clear many times, most prominently in “Abusive ADA litigation – let’s treat the disease instead of the symptoms.”

Reed v. 1-800-Flowers.com, Inc., 2018 WL 4054879 (E.D.N.Y. Aug. 24, 2018) would simply be another denial of a defense motion to dismiss were it not for a complete but not too lengthy review of the relevant law and regulatory history concerning ADA website litigation. Defense lawyers wanting a convenient reference for all the reasons they are like to lose an early dismissal motion need look no farther than this decision.

ADA pleading and proof.

The Eighth Circuit has issued a number of significant rulings in the last few months on ADA issues, reflecting an increase in ADA serial litigation within the Circuit.** In Hillesheim v. Holiday Stationstores, Inc., 2018 WL 3946372 (8th Cir. Aug. 17, 2018) the Court helpfully outlined what is and is not sufficient in terms of alleging an actual injury sufficient to maintain an ADA case. It also broke down the plaintiff’s case based on individual violations, implicitly rejecting the idea that if the plaintiff can allege even one violation he or she has standing to pursue all other violations.† In this case the plaintiff failed to allege how he was injured by some of the supposed violations, leading the Eight Circuit to conclude he had failed to establish standing for those violations:

It [plaintiff’s declaration] did not explain how the lack of an access aisle or insufficient vertical signage injured him. It made no mention, for example, of whether he had difficulty identifying which spots were handicap accessible or even whether the alleged defects caused him to leave without entering the store. Alleging bare violations of the ADA without evidence of an actual injury is insufficient to establish Article III standing.

In contrast the plaintiff’s allegation that a particular garbage can blocking a ramp deterred him from entering the store because he was afraid of being injured met the specificity requirement – he tied his ADA injury to a specific feature. This is the kind of careful standing analysis required by Article III of the Constitution and critical to the ability of the courts to distinguish between lawsuits filed only to profit attorneys and lawsuits filed to vindicate the policy of accessibility in the ADA.

In Longhini v. Lakeside Operating Partn., L.P., 2018 WL 4101003 (M.D. Fla. Aug. 3, 2018), report and recommendation adopted 2018 WL 4092117 (M.D. Fla. Aug. 28, 2018) a plaintiff managed to lose a default judgment through sloppy pleading. He failed to specify whether the building was a pre-existing structure, which determines whether the “new construction” standard or the “readily achievable” standard applies, and also failed to allege the supposed violations with sufficient detail to permit entry of an enforceable injunction. These are common problems with serial filers whose business model requires that minimum time be spent churning out boilerplate complaints, and the careful analysis, like that of the Eighth Circuit in Hillesheim, represents a way by which the courts can address a problem Congress has been unwilling to solve.

Content obligations for movies and video.

Johnston v. AC JV, LLC, 2018 WL 3769799 (W.D. Wash. Aug. 9, 2018) answers a question that the Department of Justice has already answered in its regulations concerning closed captioning in movies. DOJ regulations require almost all movie theaters to provide the means for deaf patrons to see closed captions if they are distributed with a movie.‡‡ They do not require that closed captions be provided by the theater itself. The court also rejects a claim that a movie maker must include closed captioning, finding that merely producing movies for public consumption does not make the producer a “public accommodation” subject to the ADA. This case should be of interest to the many websites that include third party content over which they have little or no control, for it suggests that such websites are not obligated to make content accessible if the third party provider fails to make it accessible.

Mootness done right.

Defendants in ADA serial filer cases continue to get it right and get ADA claims dismissed by following a simple formula: Fix the problem, get a report from an ADA expert that covers all the bases, and move for summary judgment. Lindsay v. 1777 Westwood Limited Partnership, et al.,2018 WL 4006425 (C.D. Cal. Aug. 17, 2018). This case is worth noting because of the defendant’s expert’s thoroughness – with respect to a claim about the parking space he opined that “[t]he location, configuration, measurements, slopes, striping and signage for the accessible parking space and adjacent [access] aisle were all in compliance.” This is the kind of evidence needed to defeat a plaintiff willing (as this one was) to say almost anything to keep the case alive. The case also includes a reminder that the ADA’s requirements, broad as they are, do not require perfect accessibility. The Court rejected a claim that there should be multiple accessible routes across the parking lot in case the one accessible parking space was occupied. A defendant that does what the ADA Standards require has done all that must be done.

Mootness that doesn’t work

In Thomas v. West 2018 WL 3768525 (S.D.N.Y. Aug. 8, 2018) the defendant attempted to moot a claim that a large landing was not accessible removing for sale merchandise from the area so that it was no longer a sales area. The court, finding that this change was not of sufficient guaranteed permanence found the case was not moot because it would be too easy to put the merchandise back later. It is a good reminder that claims based on procedures and policies are very difficult to moot, and that having policies in place before suit is filed is the only effective way to deal with claims based on operations rather than construction. The case is also a reminder that no significant renovation of any public accommodation should be undertaken without a thorough ADA review. The origin of this case was a renovation that added an inaccessible mezzanine to the store. If it sounds like adding a new facility and not making it accessible is a bad idea, that’s because it is a bad idea. (The court’s earlier opinion at 242 F.Supp. 3d 293 (March 15, 2017) is also worth study by defense counsel, for it contains a thorough discussion of the alternative facilitation rule, which the Court rejects).

ADA Standards define meaningful access.

Guerra v. West Los Angeles College, 2018 WL 4026452 (C.D. Cal. Aug. 20, 2018) is a Title II case that confirms the ADA’s standards for physical access constitute the definition of accessible. The individual plaintiffs were unable to navigate a long sidewalk that met the ADA requirements for slope and cross-slope because they were not strong enough to so without a wheelchair or scooter. The Court found that because the ADA has no length requirements for accessible routes the mere length could not be a violation regardless of the effect of that length on a particular disabled individual. This is an important observation for many shopping centers and other large facilities because creating an accessible route may involve a sidewalk that takes a circuitous route in order to avoid slopes or other obstacles, particularly when the public transit stop is some distance from an accessible entrance. The Court also confirmed that there are limits on the right of a disabled person to choose how to access a facility. The plaintiffs preferred to walk, but could not walk long distances. The Court found that because either could use a scooter to cross a greater distance they had meaningful access to the facilities despite their preference for walking. This observation is relevant to claims we discussed recently concerning the Paragolfer and similar devices.*

ADA standing – know your jurisdiction

Marradi v. Karoska Landing, Inc., 2018 WL 4100041 (D. Mass. Aug. 27, 2018) should remind defense lawyers that standards for standing vary from one jurisdiction to another. The defense moved to dismiss based in part on a standing analysis that is applied in the 11th Circuit and some others, but has not been applied in the 2nd Circuit. ADA defense requires real knowledge of judicial approaches that vary from circuit to circuit and even from judge to judge.

Default as a defense strategy.

Johnson v. Top Investment Property LLC, 2018 WL 3993419, at *10 (E.D. Cal. Aug. 17, 2018) is a typical default judgment case. The defendant failed to answer, presumably because it knew that the cheapest way out of an ADA case is to do nothing until ordered to do so by the Court. This makes sense because (a) remediation of any real barriers to access is inevitable and (b) payment of plaintiff’s attorneys’ fees for a default judgment is likely to be less than paying defense fees to advance a mootness defense. The case will be useful to attorneys who adopt this defense strategy by defining the parameters of what the plaintiff’s lawyer can hope to recover. The decision cites cases finding that the total number of reasonable hours for a default judgment case is between 9.2 and 25 at a billing rate of $250 to $300 per hour. Defendants should, however, be cautious. In a recent decision from the Northern District of California the Court found a billing rate of $375 per hour reasonable for a 9 year attorney. Che v. San Jose/Evergreen Community College District Foundation, 2018 WL 3930153, at *2 (N.D. Cal. Aug. 16, 2018). Before deciding to default a defendant must know what the particular court in which the case is docketed will do with both billing rates and hours.

Rogers v. Subotic LLC, 2018 WL 3918181 (S.D.N.Y. Aug. 16, 2018) will be helpful to defendants worried about the scope of relief that might be granted if they choose to default. The Court granted injunctive relief for specifically pleaded violations of the ADA, but declined to grant such relief where the violation was not specifically pleaded. It is typical of ADA serial litigants that they do not define the violations, especially interior violations they may just be guessing at. It is risky to assume a court will be as careful as this court was, but if the strategy goes badly this case might help.

Winkle v. JSCP, LLC, 2018 WL 3756963 (S.D. Tex. Aug. 8, 2018) is the kind of victory through default that a defendant can usually only dream of. Following Judge Lindsay’s lead in Burrell v. Twin Goose, LLC, 2017 WL 4230499 (N.D. Tex. Sept. 25, 2017)*** the Court found that the plaintiff’s failure to plead that the requested remediation was readily achievable made the complaint insufficient to support a default judgment. Defendants in other jurisdictions need to be careful though, for some courts hold that whether a particular remediation is “readily achievable” is an affirmative defense that the plaintiff need not plead. See, e.g., Smith v. Golden China of Red Wing, Inc., 2018 WL 3325907 (D. Minn. July 6, 2018) and our blog at “ADA and FHA Quick Hits – Delayed World Cup Edition.”

Is this a default case?

In Johnson v. Thomas 2018 WL 3861584 (E.D. Cal. Aug. 14, 2018) the defendant apparently answered the lawsuit, but then filed a “Notice of Non-Opposition” the plaintiff’s Motion for Summary Judgment, putting it in the same position as if it had defaulted. It’s a peculiar strategy because it would certainly have been cheaper to simply default. One explanation would be that the defendant wanted some control by appearing in the case, but was willing to avoid spending any really money to fight the case. I wonder, however, if this defendant was willing to do nothing because it suspected any order for remediation would be unenforceable. Here is the last paragraph of the Court’s decision:

For the reasons provided, Plaintiff’s Motion for Summary Judgment, ECF No. 32, is GRANTED. Defendants are enjoined to make their property compliant with the Americans with Disabilities Act and the Court awards Plaintiff statutory damages in the amount of $8,000.

This injunction, which does no more than order the defendant to comply with the law, would ordinarily not be enforceable by contempt because it is not sufficiently specific. Perhaps the defendant was willing to pay the damages because it knew it wouldn’t have to do any remediation work. This is speculation, but a strategy based on answering but not defending a case might be a good one for defendants willing to incur some legal fees to avoid the risk of a complete default.

Below average is not disabled.

Glueck v. National Conference of Bar Examiners, 2018 WL 3977891 (W.D. Tex. Aug. 20, 2018) is a case with a valuable reminder that an “impairment” is not always a disability, and that the relevant comparison for any skill is with “the general population.” Glueck wanted an accommodation on part of the exam required to become a lawyer in Texas, claiming that he had ADHD and other mental impairments. The Court had no trouble concluding he was impaired, but found that his ranking of “low average” in many categories of intellectual performance did not significantly limit the major life activity of reasoning when compared to the general population. The ADA is intended to protect those whose disabilities are significant, not those who just aren’t as smart as they would like to be.

Service animals must be accommodated.

Berardelli v. Allied Services Inst. of Rehab. Med., 2018 WL 3849363 (3d Cir. Aug. 14, 2018) the Third Circuit held that “as a matter of law” a request to accommodate a service animal was a reasonable request. This means that a defendant faced with such a request has to prove it is not reasonable, rather than the other way around. The Court also found that the Rehabilitation Act, which applies to certain federally funded programs, includes a reasonable accommodation requirement like that in the ADA even though it is not explicitly contained in the Rehabilitation Act. This is important to entities covered by the Rehabilitation Act because it permits the recovery of damages while the ADA does not. Covered entities need to understand that their obligations are essentially identical to those of any ADA public accommodation, with the added risk of money damages.

Making serial plaintiffs play by the rules.

Brooke v. Padre Hotel, LP, 2018 WL 3769830, (E.D. Cal. Aug. 7, 2018) is one of a host of ADA hotel accessibility cases filed by Teresa Brooke and her attorney Peter Kristofer Strojnik. Under Ninth Circuit law this kind of serial litigation based on dubious claims of standing cannot be easily dealt with in the early stages of a case. That does not mean, however, that courts cannot enforce their own rules in order to diminish the burden of such cases. In Padre Hotel the plaintiff attempted to expand her lawsuit beyond the original claims concerning an accessible hotel entrance to include claims based on a lack of accessible deluxe rooms and suites. In doing this she missed the court’s amendment deadline by several weeks and, when moving for leave to amend, failed to address the relevant standard for such motions. The court had no trouble denying the motion for leave, leaving the plaintiff with a limited case based on barriers to access that can be remediated with relative ease. Serial plaintiffs and their counsel create a large workload not only for the courts, but for themselves, because lots of lawsuits means lots of deadlines to meet. There is nothing inherently wrong with lots of lawsuits, but there is no reason for the courts to give professional plaintiffs any leeway in meeting their obligations to the court.

A frankly odd decision on ADA injuries.

When I first read a short blurb about Scott Smith, Pl., v. RW’s Bierstube, Inc. and Yanz Properties, LLC, Defendants., 2018 WL 4005754, (D. Minn. Aug. 20, 2018) I thought I knew exactly where it was going. The defendant asked to inspect the parking in the plaintiff’s apartment complex on the theory that if the plaintiff could navigate the slopes and sidewalks at his own home then he could navigate similar slopes at the defendant’s place of business, even if they violated ADA standards. The argument is based on a misundertanding of the injury the ADA is intended to prevent. The ADA’s purpose is to make access to public accommodations as close to equal as is possible for those with disabilities, and its objective standards are essentially a statutory compromise between complete equality, which is impossible or impossibly expensive, and a lower but adequate standard of access. A plaintiff suffers and ADA injury when the ADA Standards are not met and the plaintiff is injured, even if the injury is simply unnecessary inconvenience rather than a complete denial of access. Thus, a plaintiff’s ability to navigate in his own home or any other place is not really relevant to an ADA claim based on violations of the ADA Standards in another. The twist here is that the Court disallowed the discovery only because the plaintiff did not control his apartment parking lot and therefore could not offer it for inspection. The right decision, but for the wrong reason.

‡ Thanks to William Goren, whose blog at williamgoren.com is a valuable ADA resource, for calling this case to my attention. I must also thank my subscriber who forwarded it, but whose identity I won’t make public.

‡‡ Closed captions are text that accompanies the video image but is not visible without special equipment. Open captions are text that is visible with the video.